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April 27, 2017

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Say no to Gorsuch, whose manifesto bodes ill for climate change fight

Judge Neil Gorsuch was not on President Donald Trump’s first list of potential Supreme Court nominees. Gorsuch did, however, appear on a revised list just weeks after he wrote a controversial manifesto arguing that it should be easier for corporations and individuals suing federal agencies to have courts strike down regulations and overrule decisions by experts at agencies such as the Environmental Protection Agency.

Anyone concerned about the health of our environment should oppose Gorsuch’s nomination. If Gorsuch is confirmed, his approach to reviewing regulations suggests that he could vote to limit the EPA’s ability to address climate change. And with the pace of climate change now reaching devastating levels, the planet simply cannot afford another justice who would rule for fossil fuel companies and against the EPA.

At the heart of Gorsuch’s August 2016 manifesto is the Supreme Court’s 1984 decision in a case known as Chevron v. NRDC. In Chevron, the Supreme Court ruled that if a federal law is unclear or vague, the courts should not overrule the interpretation by the agency experts that implement the law, unless the agencies clearly got it wrong.

The court’s Chevron ruling was a common-sense approach to judging voluminous, complicated regulations. In practice, this approach means that when the Clean Air Act is unclear, the scientists who decide what level of air pollution could harm human health should get the benefit of the doubt. In other words, judges — whose expertise is in the law, not environmental science or public health — should let agency experts fill in the blanks.

Gorsuch, however, believes that judges should have more power to overrule scientists and policy experts — making it much harder for those who draft regulations to do their jobs. Furthermore, if courts move away from Chevron, some judges might feel pressure to become experts on a range of technical topics, such as air quality regulations, banking fraud and patents. This is an impossible standard for any judge to meet.

Even Justice Antonin Scalia, who Gorsuch would replace, defended Chevron and the need for judges to defer to agency experts. In fact, Scalia said, “If Congress is to delegate broadly, as modern times are thought to demand, it seems to me desirable that the (agency) be able to suit its actions to the times.” Scalia also noted that agencies, unlike judges, are politically accountable.

Congress has passed laws that give the EPA broad, but sometimes vague, authority to address pollution. Using this authority, the EPA in 2014 developed the Clean Power Plan, which requires power companies to release less carbon and begin a long-term transition to zero-carbon, renewable sources of energy.

The Clean Power Plan has been on hold for more than a year, as courts decide whether the plan exceeds the EPA’s authority. The electric utilities and coal companies challenging the plan point to an amendment in the Clean Air Act that seems to limit the EPA’s authority, but the EPA created the plan under a conflicting amendment that seems to give the agency authority. Since the conflict in the law makes it ambiguous, the Chevron approach requires courts to defer to the EPA’s judgment — in this case, by allowing the Clean Power Plan to move forward.

In a brief submitted in support of the Clean Power Plan, religious leaders warned, “Climate change threatens human health and welfare, particularly for those living in poverty and the least powerful.” But if confirmed to sit on the Supreme Court, Gorsuch could end up casting deciding votes against the Clean Power Plan or similar efforts to fight climate change.

Of course, the companies suing to stop the Clean Power Plan would be very pleased to see Gorsuch on the court. But for ordinary Americans, confirming Gorsuch could ultimately result in more heat waves, extreme weather, and polluted air and water, because Gorsuch could interfere with the government’s ability to address the real threats of climate change.

Gorsuch will likely be on the federal bench far longer than President Trump is in office, and, if confirmed, Gorsuch would be influencing the law and shaping the Constitution for decades. America simply cannot afford a justice who wants the Supreme Court to curtail the ability of agency experts to do their jobs, not while the world is on fire from a warming climate.

Billy Corriher is the deputy director of legal progress at the Center for American Progress. He wrote this for insidesources.com.

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